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Prosecution guidelines

Overview

These guidelines provide information about the way work health and safety prosecutions are conducted by WorkSafe. These guidelines are published in accordance with section 230(3)(a) of the Work Health and Safety Act 2012.

The National Compliance and Enforcement Policy outlines the aims of compliance and enforcement as well as the compliance and enforcement tools available to work health and safety regulators. The Policy also sets outs general information about prosecutions, including the criteria used by regulators to determine whether or not to initiate prosecution and the timeframes for initiating such action.

Sentencing options

The work health and safety laws set out a range of sentencing options that may be used. The following orders may be applied in addition to any penalty imposed for an offence:

adverse publicity orders

orders for restoration

work health and safety project orders

court-ordered work health and safety undertakings, and

training orders.

Prosecution decisions

A decision to prosecute is made by the Director of Public Prosecutions (DPP) following consideration of a recommendation by WorkSafe.

The DPP is currently reviewing it prosecution guidelines on how the office exercises its discretion to prosecute (July 2016).

Requests for prosecutions

Section 231(1) of the Work Health and Safety Act 2012 allows a person who reasonably considers that a certain offence has been committed but where no prosecution has been brought, to ask the appointed regulator (the General Manager, WorkSafe) in writing to bring a prosecution. The request can only be made if no prosecution has been brought between six and twelve months after the event has occurred.

Section 231 only applies to Category 1 or 2 offences, which are the most serious criminal offences under the Work Health and Safety Act 2012. These offences are provided for under sections 31 and 32 of the Work Health and Safety Act 2012 respectively.

A Category 1 offence occurs when a person has a health and safety duty, and without reasonable excuse engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and the person is reckless as to the risk to an individual of death or serious injury or illness.

A Category 2 offence occurs where a person has a health and safety duty and fails to comply with that duty, and the failure exposes an individual to a risk of death or serious injury or illness.

There is a further category of offence, Category 3, which occurs where a person has a health and safety duty and the person fails to comply with the duty. The Category 3 offence is not covered by section 231 of the Work Health and Safety Act 2012.

How do I make a request?

Any such request should refer to section 231 of the Work Health and Safety Act 2012 and state that it is a request under that section. To assist the regulator in assessing and progressing your request you should set out the facts of the event, including the date, place and names of the people concerned, and the nature of the offence you believe has occurred. The request should identify the person you believe committed the offence.

The request should also include your contact details.

The request must be in writing. The request must be made to the regulator after 6 months but not later than 12 months after the act, matter or thing has occurred.

A request for the regulator to commence a prosecution should be sent to:

The General Manager
WorkSafe
PO Box 56
ROSNY PARK TAS 7018

Questions and answers

If I make a request will my details remain confidential?

Your details will be kept confidential to the extent required and permissible by law. Section 271 of the Work Health and Safety Act 2012 titled "Confidentiality of Information" outlines requirements and provisions as it relates to the protection and use of information.

To properly investigate some matters it may be necessary to disclose to another person some of the details of the information you have provided, therefore your identity may become known.

If I make a request how long will it take to receive a response?

The regulator must provide a written response to a request within three months, and must advise you whether the investigation is complete, and if it is complete whether a prosecution will be brought.

If the decision has been made not to bring a prosecution, you must be told the reasons for that decision.

What happens if I am told that the investigation is not complete?

If a request is made within the specified time (i.e. between 6 and 12 months of the alleged offence) and the investigation is not complete, the regulator will advise the applicant in writing of that fact and also undertake to inform the applicant when the investigation is complete and of its decision to prosecute.

What happens if I make a request to commence a prosecution at the time an Enforceable Undertaking proposal is under consideration?

The regulator will not enter into any proposed Enforceable Undertaking until such time as the request under section 231 of the Work Health and Safety Act 2012 has been assessed and determined.

What can I do if the regulator advises me that it has decided not to prosecute an offence, but I still think that there should be a prosecution?

If the regulator informs you that it has decided not to bring a prosecution for a Category 1 or 2 offence, you will be advised you that you may ask for the matter to be referred to the Director of Public Prosecutions (DPP) for consideration.

If you make a request in writing for the matter to be referred to the DPP, the regulator must refer the matter to the DPP within one month of your request.

A request for the regulator to refer a matter to the DPP should be sent to:

The General Manager WorkSafe PO Box 56 ROSNY PARK TAS 7018

If the DPP advises that a prosecution should be brought, does the regulator have to prosecute?

No. If the regulator declines to follow the DPP's advice to bring proceedings, it must give written reasons for the decision. The reasons must be given to the applicant who made the request and the person who the applicant believes committed the offence.

If the regulator declines to follow the DPP's advice that a prosecution should be brought, can anyone else prosecute?

Yes. The DPP has a general power to bring proceedings for an offence against the Act if it believes it is necessary.